A TEMPLATE FOR ACTION
November 29, 2006
A PUBLIC / PRIVATELEGAL PREPAREDNESS INITIATIVE
TO DEVELOP “GOOD SAMARITAN” LIABILITY PROTECTION FOR BUSINESS AND NON-PROFIT ENTITIES ASSISTING
IN EMERGENCY COMMUNITY PREPAREDNESS ACTIVITIES
This Public / Private Legal Preparedness Initiative is being carried out by the North Carolina Institute for Public Health (NCIPH) at the University of North Carolina School of Public Health, under a grant from the Alfred P. Sloan Foundation. (See
Overview
This initiative is designed to address an immediate and pressing legislative gap in the laws of most states pertaining to the necessary public / privatepartnerships and activities needed in the face of the growing risk of community emergency situations.
Most state “Good Samaritan” laws leave significant gaps of liability exposure for both business entities and non-profit organizations that are willing to assist in the preparation for, and response to, an emergency posed by a natural disaster, emerging infection, or terrorist event.
Under traditional state law, most of the current “Good Samaritan” liability protections only cover individuals acting in good faith to assist others. This gap can lead to hesitation or lack of coordination on the part of business and non-profit entities providing help during an emergency situation.
Simple state legislative steps need to be taken now to remove the disincentives against, and increase the motivation for, business and non-profit entities stepping forward to collaborate with government in order to develop the practical networks needed to protect the public during emergency situations.
Context & Need
A few concrete examples provide illustrations of theneed for immediate state legislative change:
1. Distribution of Strategic National Stockpile Material: Government officials are seeking better procedures to coordinate with the private sector in the distribution and management of resources in the federal Strategic National Stockpile (SNS). In a serious emergency situation, there will not be enough government workersto widely distribute SNS materials to large population cohorts. Collaboration with the private sector will be needed in a flu pandemic to distribute, for example, anti-viral medicines to key service workers and then to other employees, family members, and larger segments of the population. Businesses and non-profits voluntarily assisting in such distribution are potentially exposed to civil liability under state law for adverse events relating to the administration of such SNS materials.
2. Logistical Support of Food and Services During an Emergency: In a shelter-in-place or voluntary quarantine situation, the current just-in-time supply chains for food and other necessities will be severely challenged. It is important that businesses and non-profit organizations not hesitate, due to liability concerns, from developing new, flexible arrangements in coordination with governmental agencies to get supplies immediately to those persons who should not or cannot move due to a health emergency.
3. Facilities Made Available to Provide Shelter During an Emergency: The recent experiences with persons displaced by Hurricane Katrina demonstrated the value of the surge capacity of non-profit organizations, such as churches, to shelter and provide support to individuals in need. In planning for a pandemic flu scenario, churches have realized their potential liability if, for example, a disease spreads within a cohort of persons being temporarily sheltered on their premises.
Currently, state law leaves corporations, partnerships, associations, and non-profit organizations exposed to potential civil liability for negligence in the event that individuals are injured in the course of such emergency preparedness and response activities.
Four Elements of the Proposal
The proposal contains four practical elements:
- Extend Good Samaritan protection to business andnon-profit entities acting in good faith during an emergency.
As a policy matter, this simple change puts businesses and non-profits on the same footing as individuals, who are encouraged by the law to act in good faith to help during an emergency.
Note that, in general, Good Samaritan protection provides qualified immunity from negligence liability. Good Samaritan laws do not normally extend liability protectionto cover wanton, reckless, or intentional conduct.
- The extended coverage would be triggered by the Governor’s emergency declaration.
This coverage for businesses and non-profits would be automatically activated when the Governor of the state declares an emergency. It would not require any federal declaration.
- The coverage would apply to those emergency activities conducted in coordination with the state agency.
The liability protection would not extend to businesses and non-profits acting unilaterally and without coordination with the state government. It would require the activity to be conducted pursuant to the order or request of the state government or any political subdivision of the state. This provision encourages the desired coordination between the public and private sectors.
- The coverage would also include pre-event planning and training activities that take place prior to the declared emergency.
Once the Governor declares an emergency, the liability protection for businesses and non-profits would extend retroactively to also cover the pre-event planning and training activities that took place prior to the emergency. This provision is designed to encourage the development of pre-event memoranda of understanding between public and private entities, as well as training and practice events.
Stakeholders
Stakeholders in the community who have an obvious interest in implementing this initiative are:
- Businesses, trade associations, and business organizations.
(See importance of the liability issue in the recent study appearing in “Getting Medicine to Millions: New Strategies for Mass distribution,” Biosecurity and Bioterrorism: Biodefense, Strategy, Practice, and Science, Vol. 4, No. 2, 2006.
- Non-profit organizations, colleges, churches, etc.
- Public health, emergency management, and civic leaders.
(See summary of recent initiative support from public health leaders at
Examples from Pilot Initiatives in North Carolina and Georgia
Ultimately, to implement the four legislative policy elements described above, each state will likely need to make technical changes either to the existing Good Samaritan statute or to existingemergency management legislation.
Since the needed technical changes are going to be quite specific and unique for each state’s code, we are not attempting to draft a “one-size-fits-all” model state law that would then have to be immediately redrafted to fit within a particular state code. Instead, we have developed two examples of how these technical changes may be constructed.
As part of the Alfred P. Sloan grant, two pilot projects are underway in North Carolina and Georgia. Parties in the business, non-profit, public health, and academic communities of both North Carolina and Georgia have expressed interest in collaborating on this topic.
One approach, developed to fit North Carolina’s legislative text, has been to insert the necessary technical changes into the emergency management chapter of the existing NCGeneral Statutes.
Another approach, developed with the assistance of a class at the Georgia State University College of Law, has been to make changes to the Good Samaritan provisions in the Georgia code.
Accordingly, two examples of these respective approaches are attached to this overview to assist drafters in various jurisdictions.
Please note that these two attachments do not represent the position of any state agency or organization and are included solely to illustrate examples of various legislative drafting approaches.
This project has evolved out of a 2005 Alfred P. Sloan Foundation planning grant to the CDC Foundation that examined the lessons-learned by the Toronto business community during Toronto’s response to the 2003 SARS epidemic in Canada. A brief report of that prior effort can also be found at
Contacts
Further information on this NCIPH project can be obtained at or by contacting:
Gene Matthews, JD
Senior Fellow
North Carolina Institute for Public Health
UNC School of Public Health
CB #8165
Chapel Hill, NC 27599-8165
phone = 919-966-9924
cell=404-606-1241
fax=919-966-0478
Milissa Markiewicz
Project Coordinator
North Carolina Institute for Public Health
CB #8165
University of North Carolina
Chapel Hill, NC 27599-8165
919-966-9934
Attachment 1
Example of Draft Approach for Changes to Emergency Management Chapter 166A
of the North Carolina General Statues
DRAFT
September 27, 2006
§ 166A14. Immunity and exemption.
(a) All functions hereunder and all other activities relating to emergency management are hereby declared to be governmental functions. Neither the State nor any political subdivision thereof, nor, except in cases of willful misconduct, gross negligence or bad faith, any emergency management worker complying with or reasonably attempting to comply with this Article or any order, rule or regulation promulgated pursuant to the provisions of this Article or pursuant to any ordinance relating to any emergency management measures enacted by any political subdivision of the State, shall be liable for the death of or injury to persons, or for damage to property as a result of any such activity.The State and its political subdivisions shall not be liable for the death of or injury to persons, or for damage to property as a result of any such activity. Any emergency management worker providing emergency management services shall not be liable for the death of or injury to persons, or for damage to property as a result of any such activity, unless the death, injury, or damage to property was caused by willful misconduct, gross negligence or bad faith. For purposes of this section:
(1) "emergency management worker" means:
(A) any full-time, parttime, or auxiliary employee of this State or other states, territories, possessions or the District of Columbia, of the federal government or any neighboring country or of any political subdivision thereof performing emergency management services at any place in this State pursuant to the order or request of orunder the control of the State government or any political subdivision of the state;
( B) any association, corporation, or other private for-profit or not-for-profit entity, and their officers, directors, employees or agents, performing emergency management services at any place in this State pursuant to the order or request of orunder the control of the State government or any political subdivision of the state;
(C) any health care worker providing emergency management services pursuant to the order or request of orunder the control of the State government or any political subdivision of the state, including but not limited to: (i) a health care worker performing health care services as a member of a hospitalbased or countybased State Medical Assistance Team designated by the North Carolina Office of Emergency Medical Services, and (ii) any person performing emergency health care services under G.S.9012.2; and
(D) any volunteer providing emergency management services pursuant to the order or request of orunder the control of the State government or any political subdivision of the state;
The term “emergency management worker” does not include a person or entity that receives compensation in excess of: (1) a salary or other compensation provided to a person from an employer while providing emergency management services, (2) reimbursement provided to a person or entity for expenses related to the provision of emergency management services, or (3) insurance or other third-party reimbursement provided to a health care provider for providing emergency management services.
(2) “emergency management services” means:
(A) implementing, complying with or reasonably attempting to implement or comply with this Article or any order, rule or regulation promulgated pursuant to the provisions of this Article or pursuant to any ordinance relating to any emergency management measures enacted by any political subdivision of the State, or
(B) emergency preparation and planning activities pursuant to this Article.
(b) The rights of any person to receive benefits to which the personwould otherwise be entitled under this Article or under the Workers' Compensation Law or under any pension law, and the right of any such person to receive any benefits or compensation under any act of Congress shall not be affected by performance of emergency management functions.
(c) Any requirement for a license to practice any professional, mechanical or other skill shall not apply to any authorized emergency management worker who shall, in the course of performing the worker'sduties as such, practice such professional, mechanical or other skill during a state of disaster.
(d) As used in this section, the term "emergency management worker" shall include any full or parttime paid, volunteer or auxiliary employee of this State or other states, territories, possessions or the District of Columbia, of the federal government or any neighboring country or of any political subdivision thereof or of any agency or organization performing emergency management services at any place in this State, subject to the order or control of or pursuant to a request of the State government or any political subdivision thereof. The term "emergency management worker" under this section shall also include any health care worker performing health care services as a member of a hospitalbased or countybased State Medical Assistance Team designated by the North Carolina Office of Emergency Medical Services and anyperson performing emergency health care services under G.S.9012.2.
(e) Any emergency management worker, as defined in this section, performing emergency management services at any place in this State pursuant to agreements, compacts or arrangements for mutual aid and assistance to which the State or a political subdivision thereof is a party, shall possess the same powers, duties, immunities and privileges the person would ordinarily possess if performing duties in the State, or political subdivision thereof in which normally employed or rendering services.
Attachment 2
Example of Draft Approach for Changes to Good Samaritan Provisions
in the Official Code of Georgia Annotated
DRAFT: 10/13/06
FOR DISCUSSION PURPOSES ONLY
A BILL TO BE ENTITLED
AN ACT TO INCREASE EMERGENCY PREPARENESS AND VOLUNTARY COORDINATION BETWEEN PUBLIC AND PRIVATE ORANIZATIONS
To amend Titles 38 and 51 of the Official Code of Georgia Annotated, relating to civil immunity and emergency preparedness; to provide for certain immunity from civil damages in conjunction with assistance, services, or goods rendered as part of a response for a state agency in a declared emergency; to provide for related matters; to provide for an effective date and for applicability; to repeal conflicting laws; and for other purposes.
[NOTE: This Act arises out of recent events such as Hurricane Katrina and pandemic influenza preparedness efforts, which underscore the vital importance of improving voluntary assistance and coordination between the public and private sectors regarding emergency situations. In general, current Good Samaritan law in Georgia only gives liability protection to individuals who provide emergency assistance and does not extend this same liability protection to business and non-profit entities whose voluntary efforts will be vital in promptly responding to a community emergency. The simple purpose of this act is to extend to business and non-profit entities the same incentive that encourages individuals to assist neighbors in times of need.]
BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
Section 1.
Title 51 of the Official Code of Georgia Annotated, relating to torts, is amended by striking Code Section 51-1-29.2, relating to repair of property, and inserting in its place a new Code section to read as follows::
“51-1-29.2.
Any natural person, association, organization, private entity, religious organization, or charitable organization, and the officers, directors, employees, and agents of any such entity, association, or organization, who voluntarily and without the expectation or receipt of compensation provides services and goods at any place in this State subject to the order or control of or pursuant to a request of the State government or any political subdivision of the State in preparation for, anticipation of or during a time of emergency and in a place of emergency as declared by the Governor for the benefit of any individualnatural person or natural person’s property to prevent and/or minimize harm to a natural person or to prevent, minimize, and repair injury and damage to a natural person’s property resulting from biological, chemical, or nuclear agents, terrorism, pandemic or epidemic of infectious disease, catastrophic acts of nature, including but not limited to fire, flood, earthquake, wind, storm, or wave action, or any other emergency situation as declared by the Governor when the Governor invokes this Code Section by executive order shall not be liable to any individualnatural person receiving such assistance as a result of any act or omission in rendering such service if such natural person, entity, association, or organization was acting in good faith and unless the damage or injury was caused by the willful or wanton negligence or misconduct of such natural person, entity, association, or organization. Nothing contained in this code section shall amend, repeal, alter, or affect in any manner any other immunity provided elsewhere in the Code.”
Section 2.
Title 38 of the Official Code of Georgia Annotated, relating to emergency management, is amended by striking Code Section 38-3-36, relating to licensure and exceptions to licensure, and inserting in its place a new Code section to read as follows::
“38-3-36
Except as otherwise provided by subsection (b) of this Code section, all nongovernmental rescue organizations, associations, groups, teams, search and rescue dog teams, or individuals, whether or not they are holders of a charter issued by this state or officers thereof, shall be prohibited from performing any rescue or emergency management type activity until the organization, association, group, team, search and rescue dog team, or individual has been licensed by the director of emergency management to perform the activities. It is expressly declared that Articles 1 through 3 of this chapter shall not amend, repeal, alter, or affect in any manner Code Section 51-1-29 or Code Section 51-1-29.2.”
Section 3.
This Act shall become effective upon its approval by the Governor or upon its becoming law without such approval. This Act shall apply only to causes of action arising on or after the effective date of this Act. Any cause of action arising prior to that date shall continue to be governed by the law in effect at the time such cause of action arose.
Section 4.
All laws and parts of laws in conflict with this Act are repealed.